DHS Issues a Disturbing Report on Nonimmigrants Who Overstay Their Visas

By Dan Cadman, May 24, 2017

After a great deal of hemming, hawing, and revisions, the Department of Homeland Security (DHS) has finally issued its second report (for Fiscal Year 2016) on aliens who overstay their period of authorized admission — whether they entered with visas or through the Visa Waiver Program.

The report has generated a great deal of publicity (see, for instance, here and here).

Some media outlets such as USA Today chose to give the report a "glass half full" approach by noting that "Those 'visa overstays' represented only 1.25% of the 50 million travelers who arrived in 2016 through the nation's airports and seaports." To me that's a little like saying, "the good news is that the termite damage is only confined to the living and dining rooms; fortunately, the bedrooms have been spared so far."

The report is disturbing in no small measure because it reflects:

  1. That the makeup of aliens illegally in the United States has reached a tipping point in which overstays represent a huge and increasing percentage of the overall illegal population (more than 600,000 overstays for the period of FY 2016 alone); and,

  2. That DHS compliance and enforcement efforts are pitifully inadequate to the task of policing this population.

None of this is — or at least should not be — a surprise, disturbing though it may be. It has been years in the making. The DHS agency primarily responsible for nonimmigrant compliance efforts, Immigration and Customs Enforcement (ICE), has expended little time or effort on overstay enforcement, and even less on enforcing the rules for foreign students who quit school or work illegally.

There are potentially serious national security implications for this failure, but of course it is a quantitative as well as qualitative failure. So many overstays piled up year after year after year is an unsustainable national burden. What good does it do to build a Great Wall if aliens are able to slip in behind it by the hundreds of thousands?

What this means is not only that ICE must up its game and take the matter seriously, but also that it must be given the tools to do so. The absence of a comprehensive exit-tracking system that can record both departures, and failures to depart, so that useful leads can be generated in a timely fashion is a national disgrace. It has been too many years now with nothing but excuses.

Ditto the absence of a nationally mandated E-verify system. Want to catch aliens who overstay, or better yet, discourage them from wanting to? Make it as close to impossible as you can for them to work illegally. And take the fetters off of agents and allow them to conduct workplace enforcement operations in which real people get arrested for being in the United States without permission. Paperwork audits are fine as a supplemental enforcement exercise but they cannot, and should never have been allowed to, supplant worksite actions, as happened during the Obama administration.

Also needed is an overhaul ICE's Student and Exchange Visitor Program (SEVP), which not only controls admissions of foreign students, but also the authorization needed by schools to accept those students. SEVP has shown itself either incapable or unwilling to shut down bogus schools that are in truth nothing but visa mills, or even to hold accountable colleges and technical schools with large, unacceptable dropout rates. Perhaps this was by design during the Obama years, but it must change. What's more, the division of ICE that is responsible for both overstay and foreign student compliance, Homeland Security Investigations (HSI), must stop dithering and step up to the job, whether agents in HSI think it is beneath them or not. Enough with the elitist mentality.

Finally, the State Department's Bureau of Consular Affairs (CA) needs a long, hard look. After the tragedy of the 9/11 attacks, CA was obliged to reconsider its ways of doing business and consular officers were encouraged to toe the line in granting visas, particularly in parts of the world where terrorism or extremist views hold sway. Over the course of time, that change in outlook has withered away in favor of the old, more profligate ways. That, too, can be laid at the door of the Obama administration. One need only take a look at Executive Order 13597 issued by the then-president in 2012, which included, among other things, these mandates:

(i) increase nonimmigrant visa processing capacity in China and Brazil by 40 percent over the coming year;

(ii) ensure that 80 percent of nonimmigrant visa applicants are interviewed within 3 weeks of receipt of application, recognizing that resource and security considerations and the need to ensure provision of consular services to U.S. citizens may dictate specific exceptions;

(iii) increase efforts to expand the Visa Waiver Program and travel by nationals of Visa Waiver Program participants.

EO 13597 was clearly about significantly upping the number visas issued, not about qualitatively adjudicating them notwithstanding some of the lip gloss found in the language. Consider that both China and Brazil have been the source of large numbers of overstays in the past. Why it would have been considered in the national interest to expand this vast potential pool of illegal overstayers is anyone's guess, but it certainly didn't represent sound policy.

The notion of expanding the visa waiver program, as Obama mandated, was also difficult to rationalize at a time of increasing terrorist threats to the homeland. It remains a questionable proposition even after the passage of legislation amending the program in 2015 (which the Obama administration promptly undermined by issuing a series of "waivers" on new restrictions).

Under the Trump administration, EO 13597 may no longer be official policy, but will that be enough to fundamentally alter the "get to yes" culture that has been allowed to redevelop in the State Department among both senior and junior consular officials? That remains to be seen.

Meantime the numbers stateside will continue to pile up without cease.